United States Citizenship and Immigration Services (USCIS) uses its monthly Visa Bulletins to indicate which EB-5 investors are eligible to apply for and receive conditional permanent resident status. EB-5 investors must undergo this two-year conditional residency period before permanently relocating to the United States.

Unfortunately, the EB-5 investment industry has long been plagued by slow processing times for Form I-526, the visa petition that grants investors conditional permanent resident status. USCIS typically takes several years to process I-526 petitions. Moreover, certain countries with high volumes of EB-5 investors have been subject to final action dates that limit when conditional green cards can be granted. Even though India and Vietnam previously experienced backlogs, these had been cleared by the August 2021 Visa Bulletin. Moreover, the final action date for China, the country with the largest EB-5 backlog, made steady progress between the June and September 2021 Visa Bulletins after more than a year of inactivity. Unfortunately, the November 2021 Visa Bulletin shows no progress toward clearing the Chinese EB-5 backlog. It may be that China’s EB-5 backlog is in for another extended period of stagnancy.

Chart A, “Final Action Dates for Employment-Based Preference Cases”

Chart A of the November 2021 Visa Bulletin shows that China is the only country that is still subject to a final action date: November 22, 2015. This date has remained the same since the September 2021 Visa Bulletin.

Due to USCIS’s processing inefficiency, Chinese EB-5 investors who submitted their I-526 petitions after November 22, 2015, cannot receive conditional permanent resident status. In addition, the regional center values are marked as “U” (unauthorized) due to the expiration of regional center EB-5 investment. It is unclear when the regional center program will be revalidated, and USCIS is no longer accepting I-526 petitions associated with regional centers. All pending regional-center I-526 petitions filed before the program’s expiration on June 30, 2021, will not be adjudicated for the time being.

Chart B, “Dates for Filing of Employment-Based Visa Applications”

Chart B of the November 2021 Visa Bulletin likewise shows no progress in China’s date for filing, which dictates when Chinese EB-5 investors can apply for their conditional visas. The Chinese date for filing is still December 15, 2015—it has not progressed in more than 12 months. Unfortunately, Chinese EB-5 investors still have to wait before requesting their conditional green cards, even if their I-526 petitions have been approved.

The November 2021 Visa Bulletin is indicative of the EB-5 investment industry’s dire need for expedited processing times. USCIS needs to allocate more resources toward adjudicating EB-5 visa petitions; foreign nationals who have complied with all EB5 investment regulations deserve to have their petitions approved within a reasonable timeframe. Ur Jaddou, who was appointed as director of USCIS on July 30, 2021, has said that she will work on reducing the EB-5 visa backlogs.

The requirements set out by United States Citizenship and Immigration Services (USCIS) for EB-5 investors are relatively straightforward—investors are required to meet the minimum investment threshold, use at-risk funds, create at least 10 jobs, and prove that their invested capital was sourced lawfully. Thanks to the EB-5 investment program’s accessibility, thousands of foreign nationals have been able to relocate to the United States and enjoy the benefits of permanent resident status.

After an EB-5 investment has been made, the next step is to file Form I-526, Immigrant Petition by Alien Investor. USCIS will evaluate this petition to determine whether an investor has complied with the program’s regulations. Investors whose I-526 petitions have been approved by USCIS are cleared to begin a two-year conditional permanent residence period. However, investors occasionally face an unexpected obstacle after filing Form I-526—USCIS may send them a request for evidence (RFE). This article provides some background on RFEs and explains how EB-5 investors can respond to them successfully.

What are RFEs?

USCIS will send an RFE when the information submitted in an investor’s I-526 petition is incomplete or otherwise lacking—there must be abundant evidence that the investor complied with the many guidelines of the EB-5 program. If there are discrepancies in an investor’s I-526 petition or any information is confusing, USCIS will likely issue an RFE.

RFEs indicate what information needs to be provided or clarified by the investor. USCIS will typically provide clear direction on what requirement has not been complied with, and the missing pieces of evidence will be identified. An RFE may even provide examples showing what kind of documentation or other information is needed to complete the I-526 petition.

It is important to note that an RFE does not constitute a denial of the I-526 petition—USCIS simply needs more information to proceed with the adjudication process.

How to Answer an I-526 Petition RFE

The first step is to carefully examine the RFE—investors must be able to identify exactly why USCIS deemed their I-526 petition as lacking. It is also important to keep in mind the deadline for responding.

Every RFE should begin with a cover letter outlining the newly provided evidence. This cover letter should be organized according to the contents of the RFE, which will help the USCIS adjudicators analyze the new evidence more easily. Then, investors need to compile the missing evidence or clarifications, taking care to present this content in an organized manner.

The most straightforward RFEs simply ask for missing forms or specific documents, and it may be relatively straightforward to provide these materials. However, USCIS might also ask investors for stronger evidence that they will create the needed employment, use at-risk funds, or comply with other EB5 investment requirements. These issues are often related to the EB-5 project’s business plan, so investors will have to provide further information showing that the EB-5 project will indeed be successful. To this end, investors may have to provide evidence such as the employment records of existing workers or details about the project’s escrow agreement.

Investors who respond to RFEs face a potential danger: they must take great care not to make any material changes to their EB-5 projects. A material change is defined as a significant alteration to a project’s EB-5 investment structure, business activity, location, or other important features. If such a change takes place after Form I-526 is filed, USCIS will deny the investor’s petition. While investors should provide all the needed evidence and clarifications when answering RFEs, the new information should essentially agree with that of the original I-526 petition.

Since EB-5 investors must consider a myriad of factors when filing Form I-526 and answering RFEs, an immigration counsel’s guidance will be invaluable. Moreover, EB5AN offers RFE response consulting, helping EB-5 investors continue on their path toward permanent residency in the United States.

Historically, United States Citizenship and Immigration Services (USCIS) has maintained strict guidelines for EB-5 investment funds. One such mandate is that investors are expected to prove that their loans were secured by personal assets.

The groundbreaking case Zhang v. USCIS is reshaping the rules for EB-5 investments. It has taken time, resources, and official court rulings, but USCIS may be finally shifting its stance on unsecured loans. The policy changes unearthed in this case may create more opportunities for EB-5 investors, especially those struggling to meet the minimum EB-5 investment amounts.

Zhang v. USCIS

The history of this case begins in 2013 when Huashan Zhang and Masayuki Hagiwara each invested $500,000 into a new commercial enterprise (NCE). The funds were borrowed from each investor’s own business. The investors planned on meeting the eligibility requirements for participation in the EB-5 program.

Unfortunately for Zhang and Hagiwara, USCIS adopted a new policy in a 2015 stakeholder meeting that focused on the rules surrounding “cash” and “indebtedness” in the approval of EB-5 investment funds. USCIS determined that cash resulting from a loan (garnered through a third party) is actually indebtedness. This indebtedness would then require collateralization through investor-owned assets. In other words, because Zhang and Hagiwara’s investment was from uncollateralized loans rather than from secured assets, their I-526 petitions were denied.

USCIS’s decision to alter their definitions of “cash” and “indebtedness,” was unpopular. Zhang and Hagiwara decided to file a lawsuit against USCIS.

“Cash” vs. “Indebtedness” in Court

The journey of the Zhang v. USCIS case has been a long one. The filing first went to a district court in November 2018, and the court ruled in favor of the plaintiffs. Then, at USCIS’s insistence, the case then went to the U.S. Court of Appeals for the District of Columbia.

In 2020, the Court of Appeals determined that USCIS had wrongfully imposed collateralization demands on loan investments. After examining the standard definitions of “cash” versus “indebtedness,” the court ruling was that USCIS’s interpretation violated the plain meaning of EB-5 regulations. The court explained that “cash is fungible and it passes from buyer to seller, without imposing on the seller any of the buyer’s obligations to his own creditors.”

Loan Proceeds are “Cash,” and Cash is Qualified Capital

In spite of USCIS’s efforts, the appeals court ultimately ruled in favor of the plaintiffs. Essentially, it was determined that loan proceeds are “cash” and qualify as capital. As such, unsecured loans were classified as a legitimate source of funds for EB-5 investments. This was a victory for the plaintiffs and the EB-5 investment program.

The Future of USCIS and Unsecured Loans

The ruling was binding on USCIS, and Zhang’s victory establishes an important precedent for EB-5 investors. USCIS approved Zhang’s I-526 petition on April 14, 2021. Although the exact future of unsecured loans in the EB-5 investment industry is somewhat unclear, the ruling suggests that these types of loans may eventually become eligible for regular use in the EB-5 investment process.

Using Loaned Funds for an EB-5 Investment

Investors who are considering using a loan to fund their EB-5 capital should note that the majority of USCIS guidelines are still in place for all investors. In order to ensure that their investment capital meets all the source-of-funds requirements, investors should work with an experienced EB-5 legal professional before investing in an NCE. Consulting with an EB-5 firm such as EB5AN can save foreign nationals significant time and resources by avoiding issues that lead to petition denials.

The EB-5 program is a popular way for foreign nationals to obtain a U.S. green card. Because of the suspension of regional center investment in June 2021, many potential investors are looking for direct EB-5 investment projects. This investment type is regarded as one of the best options for foreign nationals seeking U.S. residency and remains popular.

As of June 22, 2021, the minimum EB-5 investment amount for targeted employment area (TEA) projects is only $500,000, making the program accessible to many foreign nationals. This amount was lowered because the controversial EB-5 Modernization Rule was deemed invalid by the U.S. District Court for the Northern District of California. As a result, guidelines for EB-5 investments reverted to their pre-Modernization Rule status.

However, investors need to act fast: United States Citizenship and Immigration Services (USCIS) has already filed an appeal to reverse the court’s decision, and the minimum investment threshold might increase soon. Interested foreign nationals are advised to invest at the lower amount of $500,000 and start the EB5 investment process, thus securing their status before any further changes are made.

Why make a direct EB-5 investment? There are three key reasons why direct EB-5 investment is a great option for foreign nationals.

1. Investors are Actively Involved in their EB-5 Projects

Since the suspension of the regional center program in June 2021, direct investment is the only option for foreign nationals looking to make an EB5 investment. While regional center investors often have a more passive role in their projects, direct EB-5 investors can choose to be active. Many direct investors want to be involved in the major decisions and are “hands-on” managers of their business. For investors wanting to retain some control over how their capital is used, direct investment is an ideal choice.

2. The Potential for Higher Returns

Direct EB-5 investment also offers greater potential returns. There are fewer people involved with direct EB-5 projects when compared to regional center projects, and the EB-5 investment capital goes directly into the new commercial enterprise (NCE). When direct EB-5 businesses grow, their investors receive a higher rate of return—this greater earning potential should motivate prospective EB-5 investors.

3. A More Secure Path

By selecting the direct EB5 investment path, investors can take comfort in knowing that their investment route is secure for the long term. The recent suspension of the regional center program created concern for investors. In fact, USCIS halted all I-526 petitions related to regional centers, so regional center investors may eventually try to get their funds back.

Direct EB-5 investors do not face these issues. Since direct EB-5 investment is already embedded within the EB-5 program, this investment route is not subject to periodic review. At present, the fact that no petitions from regional centers are being accepted means that there are more USCIS adjudicators available to handle direct investment petitions. This may result in shorter processing times for direct EB-5 investors.

Participating in the EB-5 Program

Now is the best time to make a direct EB-5 investment; the minimum investment amounts could be raised in the near future. Direct investors will appreciate being involved in the management of their business and enjoy the stability and returns associated with direct EB-5 projects.

EB5AN is here to help interested investors with their EB-5 projects. Our experts can connect prospective investors with the direct investment opportunities that best suit their individual needs.

For several years, South Korean nationals have been among the most loyal members of the EB-5 investment industry. The EB-5 program is open to qualifying investors from all nationalities, and there are no restrictions regarding an investor’s age or profession. Thousands of successful, high-net-worth South Koreans have relocated to the United States lawfully after making an EB5 investment in a qualifying business.

The EB-5 investment industry benefits immeasurably from South Korean capital, which has created many jobs for qualifying U.S. workers, strengthened the economy, and reduced unemployment. In fact, now is the ideal time for South Korean nationals to participate in the EB-5 program and begin their journey toward permanent resident status.

South Korea’s Role in the EB-5 Investment Industry

Even though China, India, and Vietnam have historically been the countries with the most EB-5 applicants, South Korea is not far behind. For example, United States Citizenship and Immigration Services (USCIS) reported that 695 EB-5 visas were issued to South Korean investors in FY2019. This means that South Korea received an impressive 7.3% of all available EB-5 visas. Vietnamese investors were issued 716 visas—only 21 more than South Korean nationals.

Migration agents are active in South Korea and help refer interested individuals to suitable EB-5 investment opportunities. Additionally, the visa petition approval rates for South Korean investors are high.

How South Korean Families Benefit From the EB-5 Program

The EB-5 visa offers families a practical way to relocate to the United States—under the EB-5 program, an investor’s spouse and unmarried children under the age of 21 are also eligible for permanent resident status. Any children will gain access to the United States’ world-class education system. What is more, their chances of being admitted to a U.S. college grow significantly when they become permanent residents.

Potential South Korean EB-5 Investors Should Act Quickly

Since South Korea has an exceptionally high volume of EB-5 investors, the country faces a growing danger: becoming oversubscribed and experiencing a processing backlog. USCIS is known for its notoriously slow visa petition processing times, and countries such as China, India, and Vietnam have experienced long backlogs. As of September 2021, South Korea has not yet reached the point of oversubscription, but this may happen in the coming months or years.

Moreover, the EB-5 industry is still celebrating the June 22, 2021, court ruling that invalidated the controversial Modernization Rule. The repeal of the Modernization Rule means that foreign nationals can invest at only $500,000 if they choose a targeted employment area (TEA) EB-5 project. USCIS has already filed an appeal against this decision, so prospective investors should act quickly to invest at only $500,000. EB5AN offers several trustworthy and profitable EB-5 projects.

Many foreign nationals view the EB-5 Immigrant Investor Program as the most accessible way to relocate to the United States. Thousands of foreign nationals have obtained U.S. permanent resident status through the EB-5 investment program, and U.S. businesses have gained a valuable source of capital. Moreover, the EB-5 investment process is relatively straightforward. United States Citizenship and Immigration Services (USCIS), which oversees the EB-5 program, sets out clear requirements for investors.

However, the EB5 investment industry is plagued with certain problems, the foremost of which is USCIS’s notoriously low processing efficiency. The agency typically takes several years to adjudicate visa petitions such as Form I-526 and Form I-829, even if the adjudication ultimately results in a denial. To complicate matters, several countries with particularly high volumes of EB-5 investors have experienced processing backlogs. Chinese investors, for instance, are subject to a final action date that dictates when they can receive conditional permanent resident status.

Due to USCIS’s adjudication inefficiency, an EB-5 investor may find that the agency is taking an unreasonably long time processing their I-526 or I-829 petition. In this case, they may decide to take action and file a writ of mandamus.

What is a Writ of Mandamus?

In the EB-5 investment industry, a writ of mandamus is a federal lawsuit that orders USCIS to adjudicate an unreasonably delayed visa petition. An EB-5 investor should consider filing a writ of mandamus if USCIS is taking an unreasonably long time with their visa petition. This may also be a viable option for EB-5 investors with dependent children who could marry and thus become ineligible for permanent resident status.

Risks of Filing a Writ of Mandamus

However, filing a writ of mandamus can be risky because such litigation can only force USCIS to adjudicate a visa petition, not to approve it. If a writ of mandamus is filed successfully and USCIS is ordered to adjudicate a visa petition, the agency may issue an outright denial if any information is unclear, misleading, or out of compliance with EB-5 regulations. While USCIS typically sends a request for evidence (RFE) for visa petitions that need improvement, EB-5 investors who file a successful writ of mandamus cannot benefit from this provision.

Given this danger, filing a writ of mandamus should be the last resort to expedite an uncommonly slow adjudication process. Investors should only take this step if they are absolutely certain that all the necessary information is included in their petition and that the information is accurate. Moreover, filing a writ of mandamus can be very expensive, and there is no guarantee of success.

Despite the dangers of resorting to a writ of mandamus, there are legal precedents for successful litigation against USCIS. In the Keller Wurtz v. USCIS and Raju et al v. Cuccinelli lawsuits, the plaintiffs were disgruntled EB-5 investors who had waited approximately two years for their I-526 petitions to be adjudicated. The judges ruled in the investors’ favor, finding that, according to Congress, visa petitions such as Form I-526 should be processed within 180 days. This precedent may encourage other EB-5 investors to initiate mandamus litigation against USCIS.

Regardless of an EB-5 investor’s situation, they should always consult an immigration attorney with EB-5 experience. Competent immigration counsel can help EB-5 investors decide which steps to take if they experience an unreasonably long adjudication period.

The EB-5 investment program is popular among foreign nationals for many reasons. For instance, it offers accessible investment thresholds of $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. Moreover, the EB-5 program sets out reasonable criteria regarding job creation, using at-risk funds, and other matters; many other visa-by-investment programs are far less accessible.

However, the EB-5 investment industry has long been plagued by a major issue—slow visa petition processing times. United States Citizenship and Immigration Services (USCIS), which oversees the EB-5 program and processes EB-5 visa applications, is known for its sluggish adjudication speeds. USCIS’s processing inefficiency is detrimental to the EB-5 investment industry. EB-5 investors must submit two important petitions to USCIS: Form I-526 and Form I-829. Form I-526 grants investors a two-year conditional residency, while Form I-829 is used to achieve permanent resident status.

Processing data from USCIS’s FY2021 show that adjudication times for Form I-829 are not improving. EB-5 investment stakeholders—including project developers, investors, consultants, and immigration attorneys—may be wondering if USCIS will ever increase its processing efficiency. The remainder of FY2021 is unlikely to bring significant improvements.

I-829 Processing Statistics

From October 2020 to June 2021, USCIS processed 1,733 I-829 petitions. This figure is 37% lower than the total of 2,765 I-829 petitions processed during FY2020. Moreover, the denial rate for Form I-829 during FY2021 Q3 (April to June 2021) increased to 24%.

Perhaps the most worrying figure is that there were 11,160 I-829 petitions waiting to be processed as of the end of FY2021 Q3—this figure has grown by 8% compared to the previous quarter. Due to USCIS’s processing inefficiency, thousands of investors, many of whom undoubtedly complied with all EB5 investment regulations, are unable to move forward with the visa process. Discouraging statistics like these harm the EB-5 program’s image and make it less appealing for foreign nationals. Potential investors may be discouraged from filing Form I-829 and paying USCIS thousands of dollars in processing fees only to have to wait for several years until their petitions are adjudicated.

Will I-829 Adjudication Speed Up?

USCIS will have to allocate more resources to I-829 adjudication if the processing times are to improve. Doing so will be critical for the EB-5 investment industry. Fortunately, recent developments indicate that USCIS could take the necessary measures.

Ur Jaddou was confirmed as the new director of USCIS on July 30, 2021; she has pledged to work toward clearing the visa petition backlogs and improving productivity. Hopefully, Jaddou will make these issues a priority. Moreover, the regional center program expired on June 30, 2021. Since USCIS is no longer processing I-526 petitions associated with regional centers, more employees could potentially be used to address the backlog of existing I-829 petitions.

Visa backlogs have long been an obstacle for foreign nationals waiting for their visas, including EB-5 Immigrant Investor Program participants. For some, the wait can take years, even if their I-526 petitions have been approved. Fortunately, the U.S. Citizenship Act of 2021 could change the visa backlog for good and possibly eliminate it altogether, which would benefit the EB-5 program greatly.

EB-5 industry experts believe that pushing legislation to reduce these long-standing employment-based visa backlogs would not only benefit EB-5 program participants but the Biden administration as well—clearing the backlogs aligns with a number of the administration’s key interests, including immigration reform and economic improvement.

Specifically, there are three major provisions in the proposed immigration overhaul bill that address EB-5 investment backlogs:

• Exempting spouses and children from visa caps
• Eliminating country caps on employment-based visas
• Reclaiming program-specific unused visas

If the U.S. Citizenship Act of 2021 is passed, these legislative changes would drastically improve the EB-5 program and will quite possibly make visa backlogs a thing of the past. In this article, we take a look at these provisions in greater detail to better understand how they could affect current and future EB-5 investors.

Visa Cap Exemptions for Qualified Family Members

Historically, an EB-5 investor would need to obtain a visa for every member of their household who meets eligibility requirements. Having visa eligibility for spouses and children is a huge advantage for EB5 investment participants, but the program only receives a set number of visas each year. Having to obtain qualifying family visas can elongate the approval process, especially when investors’ visas are stuck in years-long backlogs.

The U.S. Citizenship Act of 2021’s provision for visa cap exemptions would change that. It would eliminate visa caps for all qualifying spouses and children of EB-5 investors. Even though an EB-5 investor and their family would all be eligible for separate visas, their applications would all be counted as just one total available visa for the family unit. This small change would make a huge impact, providing thousands of additional visas each year for more EB-5 investors’ family members.

Eliminating Per-Country Visa Caps

Policies of the past limit employment-based visas by country and have contributed to the current EB-5 backlogs. United States Citizenship and Immigration Services (USCIS) has traditionally capped visa allocation for every country at seven percent of the total annual visas granted to the EB-5 program. Therefore, countries with a higher demand for EB-5 visas are rarely accommodated in a single fiscal year.

More investors from certain countries could immigrate thanks to the Biden administration’s bill, and the long visa wait for approved investors could finally come to an end. Ending the country cap would help expedite the EB-5 visa process.

Recycling Unused EB-5 Visas

Until 2008, the EB-5 visa program went relatively unnoticed by the masses of foreign nationals interested in immigrating to the United States. Although the EB-5 investment program was allocated almost ten thousand visas each year, it was by and large underutilized. Because of this, it consistently granted less than 500 visas in an average year. As indicated by both its overwhelming popularity and lengthy backlogs, that is no longer the case.

The final provision of the immigration reform bill would reclaim visas that were never used, going all the way back from 1992 to today. This could result in many more visas for the EB-5 investment program. The specifics of this provision are still unclear, but it would certainly benefit the EB-5 industry. The current visa backlog would be dramatically reduced if not eliminated altogether.

In sum, the proposed bill offers hope of a streamlined visa process with reduced visa backlogs, potentially freeing up tens of thousands of visas for EB-5 investors. If Biden’s proposed legislative changes in the U.S. Citizenship Act of 2021 are approved, the EB5 investment program will reap huge benefits. Moreover, the COVID-19 pandemic has been detrimental to the EB-5 industry and to the nation’s economy. These provisional changes could very well reverse some of the damage caused by the pandemic.

On September 24, 2021, United States Citizenship and Immigration Services announced an additional extension of its March 30, 2020 decision to extend flexibilities in USCIS request responses. The original announcement was an effort to allow certain requesters, petitioners, and other applicants flexibility in responding to USCIS requests. Parties involved in any of the following response types may be eligible for the extension:

• Notices of Intent to Terminate Regional Centers
• Notices of Intent to Deny
• Notices of Intent to Rescind
• Notices of Intent to Revoke
• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

Additionally, under the following circumstances the agency is willing to consider a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) or Form-1-290B, Notice of Appeal or Motion:

If any of these forms were filed at least 60 calendar days from a USCIS decision issuance; AND if the USCIS decision was (or is) made at some point between March 1, 2020 and Jan. 15, 2022.

Be aware of possible changes to response due dates. USCIS will review due dates set in the request or notice before taking any further action, and consider only those responses to the outlined notice and request types that were (or are) received within that 60-calendar-day period after the documented due date.

For questions regarding your eligibility for this additional flexibility extension, reach out to EB5AN. You may also find further USCIS updates on the matter here.

On August 17, 2021, United States Citizenship and Immigration Services (USCIS) published the FY2021 third quarter statistics (Q3) for all application types and petition forms, including the EB-5 statistics for Forms I-526 and I-829 from April 1, 2021, to June 30, 2021. The FY2021 Q3 EB-5 statistics data set shows how the U.S. District Court of the Northern California’s repeal of the EB-5 Modernization Rule and the expiration the Regional Center Program has impacted demand for EB-5.

I-526 Petition Statistics

I-526 Petition Receipts

The below chart on I-526 Petition Receipts shows the available numbers of received I-526 petitions as of September 2021, but the chart will likely need to be revised since USCIS has published statistics that do not properly capture the I-526 receipts at the end of June 2021.

Based on the quarterly visa statistics report published by USCIS, it received 169 I-526 filings in the third quarter of FY2021, which is a notable 72% increase from the previous quarter’s 98 I-526 filings. This figure is, however, likely inaccurate given a larger number of total reported I-526 petition receipts in June 2021, suggesting an even greater increase in petitions over the last quarter. This substantial increase in filed I-526 petitions could be attributed to the June 22, 2021, court rule that attracts EB-5 investors to take advantage of the lower investment amounts of $500,000 and $1,000,000. The uncertainty of the reauthorization of the EB-5 Regional Center Program also added to this sudden surge of I-526 filings, as most investors prefer EB-5 regional center investments.

FY2021 Q3 number of I-526 petitions is also the highest received by USCIS since the COVID-19 pandemic started in FY2020 Q2.

Again, the number of I-526 petitions given in the recent data could be understated. According to a report published by USCIS Office of Policy & Strategy, USCIS has received a total of 445 I-526 petitions in June 2021 alone. Below is the chart from this published report showing the monthly I-526 petition receipts for fiscal years 2017 to 2021 Q3.

Most of the missing I-526 receipt numbers were likely received during June 29 and June 30 but were entered into the tracking system by early July, which is outside the reporting period.

I-526 Petition Approvals & Denials

The total number of I-526 petitions adjudicated in Q3 was approximately 17.6% lower than in Q2; the number of petitions approved dropped by approximately 21.3% – from 752 in Q2 to 592 in Q3 – while the number of petitions denied increased by approximately 3.8% – from 130 to 135. The denial rate rose by approximately 3.8%, from a rate of 14.7% in Q2 to a rate of 18.6% in Q3 (discrepancy due to rounding).

USCIS processing of I-526 petitions has risen slightly – from an average of approximately 855 petitions processed per quarter in FY2020 to an average of approximately 911 petitions for the first three quarters of FY2021. This change represents an approximately 6.5% increase to the average number of I-526 petitions processed per quarter in FY2021 versus FY2020.

Overall

As of June 30, 2021, 12,798 I-526 petitions are pending, which is approximately 1.9% fewer petitions than the 13,044 pending petitions at the end of Q2. A large percentage of the pending I-526 petitions are unlikely to be processed for the time being since USCIS is not presently adjudicating any I-526 petitions affiliated with the regional center program. Therefore, most EB-5 investors with pending I-526 petitions will have to wait until Congress reauthorizes the EB-5 regional center program.

I-829 Petitions Statistics

I-829 Petition Receipts

USCIS received 1,249 I-829 petitions in FY2021 Q3. This is the highest recorded number of I-829 petitions in EB-5 program history.

I-829 Petition Approvals & Denials

As with I-526 petitions, the number of total I-829 petitions adjudicated in Q3 was approximately 25.7% lower than in Q2; the number of I-829 petitions approved decreased by approximately 29.0% – from 566 in Q2 to 402 in Q3 – while the number of petitions denied increased by 24.3% – from 37 in Q2 to 46 in Q3. The denial rate rose by approximately 4.1%, from a rate of 6.1% in Q2 to a rate of 10.3% in Q3 (discrepancy due to rounding).

USCIS processing of I-829 petitions has decreased – from an average of approximately 691 petitions processed per quarter in FY2020 to an average of approximately 578 petitions for the first three quarters of FY2021. This change represents an approximately 16.4% decrease to the average number of I-829 petitions processed per quarter in FY2021 versus FY2020.

Overall

At the end of FY2021 Q3, a total of 11,160 I-829 petitions are pending, which is about 8% higher than Q2.

Though the EB-5 regional center program has expired, EB-5 investors who received their conditional permanent residence status through regional center investments must still timely submit their I-829 petitions, which USCIS is still accepting and processing.

I-526 and I-829 Petition Trends

The number of pending I-829 petitions has been trending up since 2013 compared to pending I-526 petitions, which have come down from a peak in 2017 and have remained fairly level.

The above chart shows that even before the COVID-19 pandemic started, the number of I-526 and I-829 petitions processed annually by USCIS dropped substantially and has not recovered. The COVID-19 pandemic has likely had a continuing impact on petition processing speeds.

What to Expect in the Last Quarter of FY2021

Upcoming EB-5 visa statistics in FY2021 Q4 will be heavily influenced by three major recent events:

1. The invalidation of the EB-5 Final Rule by the U.S. District Court of the Northern California on June 22, 2021, which resets the minimum EB-5 investment amount to $1,000,000 or $500,000 for projects in targeted employment areas.
2. The expiration of the regional center program on June 30, 2021, which has suspended the filing and processing of all regional-center affiliated I-526 petitions.
3. The appointment of the new USCIS director, Ur Jaddou, on July 30, 2021; the EB-5 industry hopes she will make positive changes to USCIS policies.